Legal challenges to donor anonimity.

• Author: Shanner, Laura
• Position: Gamete donors

Abstract

Several legal principles challenge the current policy of gamete donor anonymity, and require that Canadian legislation clearly move toward a policy of open donor records. These considerations include provisions of the United Nations Convention on the Rights of the Child, Charter protections of equality for offspring of donors, privacy considerations for the offspring regarding their own lie choices and the provisions within Bill C-13 itself that emphasize the priority of the well-being of children.

On December 10, 2002, a 6-5 vote in the House Standing Committee on Health narrowly defeated an amendment to Section 18(3) of the Assisted Human Reproduction Act (1) that would allow the adult offspring of donor (2) conception to have access to identifying information about their genetic parents. The surprising failure to approve the amendment reverses the Committee's own December 2001 (3) conclusions that Canadian legislation on assisted reproduction must enable offspring to have access to such information. More important, passing Bill C-13 without such an amendment would establish--for the first time--a class of individuals who are specifically prevented by federal law from having access to accurate information about their genetic origins. While the trend in adoption law over recent decades has been toward openness, not all jurisdictions require open records; none, however, specifically requires that secrecy be maintained. Establishing a class of individuals whose genetic origins must be kept secret would be a serious mistake, and may leave the Canadian government open to significant legal challenges regarding human rights obligations and violations of the Canadian Charter of Rights and Freedoms. (4)

Donor anonymity has been an unstructured social experiment in which the results for donor offspring have been almost entirely ignored. There is no evidence that anonymity is best for offspring or social families, while infertility counselors (5) and donor offspring (6) themselves document common experiences of grief, loss, isolation, disconnection, struggles with identity formation, and anger at secrets being kept about them. Secrecy may damage social family relationships, especially if the truth comes out during a crisis. As with adoption, social families may fend a variety of age-appropriate ways to incorporate knowledge about, and even relationships with, the child's biological parent(s), but those who would prefer openness are able to give no details beyond acknowledging the involvement of an unknown donor.

The preamble to this legislation seeks to protect the "dignity" of persons affected by assisted conception techniques, but purposely hiding fundamental information about a person's identity is the opposite of treating them with dignity: it institutionalizes lying. Declining to provide an answer (deception by omission) is often insufficient to respond to children's questions about their origins; outright fabrication of lies is often required to keep the secret. Governments share the obligation to tell the truth to citizens, but are often complicit in deception about...